We have seen this past week the publication of two significant markers in the move towards reform of the ombudsman landscape. Both highlight the difficulties faced by a ‘system’ of redress that has developed in an ad hoc way. Both take account of the increased consumerisation of redress, in public- and private-sector disputes. Both attempt, in their own way, to bring about greater harmonisation of the system and to improve access, consistency and accountability. They take very different approaches to such attempts, however: one, to set a relatively low baseline of standards which which redress providers must comply, and thus encourage a multitude of competing providers; the other, to merge existing redress providers into a single scheme, with enhanced powers and remit.
On 17 March, the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations were laid before Parliament. These regulations are the first step towards implementation of the EU ADR Directive, which requires member states to ensure that independent ADR is available for disputes over goods and services. They set out the requirements for ADR providers and the bodies (competent authorities) that will approve them. The Department for Business explains that that the regulations will ‘overlay an existing landscape of disparate provision of alternative dispute resolution’.
‘Disparate’ is perhaps a kind way to describe the landscape. In spite of calls for greater harmonisation, the motley range of ADR provision will remain, in some cases providers competing with each other for customers (businesses) and sharing only compliance with the minimum requirements which with providers must comply.
Although they are minimum requirements, there is something positive in the fact that information requirements will apply to all approved providers. Schedule 3 sets out the requirements that competent authorities must be satisfied that an ADR provider meets before they can be approved. The requirements for transparency (16 of them) are listed under section 5 and require that an ADR provider must state on its website a range of information about how it works, including its procedural rules and the principles the ADR provider applies, and the main considerations it takes into account when seeking to resolve a dispute. That’s helpful, although the level of detail of such information is left open.
Then today we have the long-awaited Cabinet Office consultation on the reform of public services ombudsmen in England. This sets out a number of high-level questions about the overall premise, leaving the detail to a later stage. The questions relate to the underlying principles of the proposed reforms; which services to include; what sector-specific expertise to retain, and what management structure; mechanisms and routes of access for complainants; and investigative powers. The deadline for responses to the consultation is 16 June 2015.
The consultation takes forward the proposals of the Gordon Review, which in its report completed last year but only published today, recommended creating a new Public Service Ombudsman (PSO), bringing together the existing jurisdictions of the Parliamentary and Health Service Ombudsman (PHSO), Local Government Ombudsman (LGO) and Housing Ombudsman (HO). Gordon proposed bringing into the remit of a single Public services ombudsman other public services that aren’t currently subject to an ombudsman’s oversight. Because of the complexity of the way public services are now contracted, paid for and provided, Gordon also recommended ‘following the public pound’ and including within the ombudsman’s jurisdiction arm’s length bodies and private-sector providers who either receive public funds or are contracted by government to deliver public services.
From the perspective of the research we carried out on informal resolution by ombudsmen, it is interesting to note that Gordon highlights as one of the improvements to come about with the integration of the public services ombudsmen is greater harmonisation of published information about complaints and outcomes. The Review report states, in para 140:
“In response to the Law Commission’s report, the public service ombudsmen in England accepted the need for greater harmonisation of practice around the way that details about complaints and ombudsmen conclusions are published and shared. The emphasis in the Law Commission’s report was rightly placed on how transparency around ombudsman decisions can be increased – and this was subsequently picked up by PASC in the context of how it might be possible to increase the public visibility of the ombudsman brand. Transparency in this area is also a key means by which the PSO can drive its own internal standards, building and demonstrating the quality of investigations and building a sense of autonomy and responsibility amongst staff within the organisation.”
Transparency and accountability are principles that all ombudsmen subscribe to. Indeed, the vast majority of schemes that we surveyed in our research on informal resolution publish annual reports containing a variety of aspects of their work. Invariably, these include figures about the volume of complaints received and how they are addressed and concluded. However, there are nearly as many ways of presenting those (and other) facts as there are schemes, with the result that meaningful comparisons are almost impossible.
We also found in our survey that transparency was a likely casualty of increased informality. Although formal decisions (or determinations or rulings) are often made public, complaints resolved informally are not. The majority of schemes we surveyed publish some information on informally resolved complaints – most commonly in the form of anonymised selected case summaries. Some, however, publish only statistics, and some publish nothing at all, including one scheme using informal resolution in 90% of its complaints.
If only decisions are published, and these become the minority method of closing complaints, there is less opportunity for ombudsmen to give feedback and to set standards for good complaints handling for the bodies in their jurisdiction. It also makes it difficult for complainants, and those complained about, to assess a proposed resolution against decided outcomes.
We will have to wait to see whether these two roads to reform are in fact heading in opposite directions.
‘Transparency’ is a bit of a buzz word in the ombudsman world. Specifically, it features in Article 7 of the EU ADR Directive (to be implemented in the UK from summer 2015) and in the “Guide to principles of good complaint handling” of the Ombudsman Association. More generally, it is one of the characteristics cited frequently in the promotion of the ombudsman ‘brand’. But do ombudsmen walk the walk or just talk the talk when it comes to transparency?
In our research on the way ombudsmen use informal resolution, we are coming up against an odd sort of transparency. The organisations we’ve surveyed have been very generous in responding to us – that in itself is a form of transparency. Most, if not all, publish information on their work. The actual meaning of that information, however, is often quite opaque.
We noted in our last progress report that ombudsmen and other complaint handlers don’t use the same terminology to describe the complaints they receive and how they process them. We’re also finding that they don’t report on outcomes in the same way – something that the authors of The Ombudsman Enterprise identified when they stated that official statistics published by ombudsmen “have to be examined with care”. They note that changing methodologies and definitions “can make comparisons from one year to the next and between schemes problematic”. ‘Problematic’ is putting it rather mildly. Trying to make sense of reported statistics requires examining in detail the context behind the figures we’ve been given, something that isn’t within the scope of our current project but which requires further research.
‘Harmonisation’ is another buzz word. A recent essay on “Harmonising the Ombudsman Landscape” argues that redress providers under the EU ADR Directive should be modeled on ombudsmen as a way to promote the brand in the eyes of consumers, in part because of the level of transparency:
“The competent authority, alongside the Ombudsman Association, should work with ADR bodies to align the practice and processes that they use. For best possible effect, this should be done with the core model of an ombudsman scheme in mind: for the transparency of process it affords; for the simplification of the landscape; for the benefit of justice for the consumer; for the uniformity of decision; and for the benefits the gathered data can provide to regulation, government, and the consumer.” [p.4]
There are many assumptions here – that ombudsman processes are transparent, that they deliver justice, that decisions are or could be made uniform. These assumptions need further interrogation, something highlighted at a conference on ADR and ombudsman held in Oxford in April this year. The conference organisers concluded in a policy brief that ombudsmen will need to work toward greater harmonisation of processes, terminology, and standards in order to become an essential part of the justice system.
The EU ADR Directive and transparency
The issue of transparency takes on some urgency in light of the impending implementation of the EU ADR Directive. In Article 7(2), the Directive states that all ADR providers shall make their activity reports publicly available, and these should include, among other statistics:
(a) the number of disputes received
(c) the rate of disputes the ADR entity has refused to deal with and the percentage share of the types of grounds for such refusal …
(d) …the percentage shares of solutions proposed or imposed in favour of the consumer and in favour of the trader, and of disputes resolved by an amicable solution
(e) the percentage share of ADR procedures which were discontinued and, if known, the reasons for their discontinuation
(f) the average time taken to resolve disputes
(g) the rate of compliance, if known, with the outcomes of the ADR procedures…
Let’s take a) above as an example. The number of complaints received is reported in a number of different ways currently. Some schemes report all contacts or enquiries, and then break this down into a further category of accepted or eligible complaints. Not every enquiry is a complaint.
Figure c) above refers to those complaints that are out of jurisdiction, late, premature, or otherwise not within scope. Subtracting the figure in c) from that in a) should give you the figure of accepted or eligible complaints.
But it isn’t that simple, because in this space between ‘received’ and ‘resolved’ we have more than only those complaints the scheme has refused to deal with. We also have ones (according to our survey responses) where advice is given or where a complaint might be in scope but can be remedied with a ‘quick fix’. We have some that may or may not be in scope but might be amenable to resolution with the ombudsman’s intervention. And we have those that are accepted as eligible but not dealt with by one of the three categories of process set out in the directive: a solution, proposed, imposed, or agreed between the parties. Where, for example, a case handler identifies that a suitable remedy has been offered and declines to progress the complaint, is this a proposed solution or a rejection? Confusingly, we have found that this is sometimes categorised as a ‘resolution’.
When we move on the requirements to provide a rate or percentage, we need to know which figure is being used as the starting point. For instance, is the percentage of complaints ‘resolved by amicable solution’ referring to the percentage of all complaints received (a) or is it the percentage of all accepted or eligible complaints (c)? We are finding a range of approaches to this question, making it difficult to make comparisons or draw meaningful conclusions.
Why does it matter?
In a recent essay on evolving standards in ombudsmanry, Richard Kirkham and Philip Wells examine issues of due process and fairness in ombudsmen decision-making, which are linked to openness and transparency:
“The uncertainty surrounding decision-making in the sector is made more marked by the trend over time towards resolving complaints at the pre-report stage, often by way of a letter rather than a formally completed report (Buck et al., 2011 , Ch. 4). The outcomes of such early redress have often not been published. … But the strength of the connections between the benefits to be gained from transparency and the perceived weaknesses in the complaint-handling operation do provide strong grounds for believing that more openness about the decision-making process of complaint-handlers could significantly improve confidence in complaint-handling schemes.” [p.196].
In a 2010 consultation paper on public services ombudsmen, the Law Commission originally proposed that the ombudsmen should harmonise their reporting terminology and all publish reasons for decisions not to investigate specific complaints. This was considered to be overly onerous and was opposed by the public services ombudsmen, and the Law Commission altered its recommendation. It still argued for greater transparency to allow complainants to understand the handling of their complaints, but it stepped back from recommending that the terminology of the reports issued by each ombudsmen should be harmonised.
Does transparency require standardisation? Does harmonisation mean uniformity? And how do harmonisation and transparency fit with flexibility? The call for greater consistency among ombudsmen in the processes they use (for example, in the Harmonisation essay cited above) could be read as a call for a single informal resolution process to be adopted among ombudsmen. This would be an interesting point for us to reflect on as we take this research forward and discuss it with practitioners and policy makers in the ombudsman world.